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What happens after FMLA is used up?

ClareClare 24 Posts
in FMLA/ADA/Workers’ Comp Vote Up0Vote Down
We have an employee who has been on FMLA and is nearing the end of her 12 weeks.

We had one other similar situation several years ago, and we adopted the policy that if the employee did not return to work by the end of 16 weeks, employment would be terminated.

I am thinking that, whatever we do, we must be consistent. What are you doing? Thanks for your help! Clare
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Comments

  • 3 Comments sorted by Votes Date Added
  • LindaSLindaS 1,510 Posts
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    You have to take a look at the situation. What is the medical condition? Is it something that would qualify for ADA protection? If so you need to determine if providing additional leave would be a reasonable accomodation. If it is, how much leave is needed or does it not make a difference?

    If this is not something that qualifies for ADA protection you are free to terminate the EE.

    In the past we have looked at how much additional leave is needed. If it is an issue of another week, we have granted it but if it is longer we do not make any guarantees as to their job.
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  • marcmarc 3,126 Posts
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    I think you have to offer the 16 weeks.

    FMLA is a minimum requirement, but nothing prevents companies from doing more - but you must do it consistently to avoid discrimination claims.

    At our shop, we offer the opportunity to apply for additional unpaid leave up to 90 days. It is a discretionary leave policy that is dependent on several factors that are evaluated by the Executive Director.

    So far, we have never turned anyone down. In our policy, after FML has expired, we are not required to hold the job open or to offer equivalent employment.

    If you make a specific policy change, and enforce it from this point forward, you can chop off the 16 week template you have already practiced.
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  • NaeNae55NaeNae55 3,243 Posts
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    You should offer 16 weeks unless you can prove that you had a specific and unusual situation the first time, AND that this time is nothing like it.

    It is usually better to be safe than sorry. I would probably offer 16 weeks, and then implement a new policy limiting leave to 12 weeks so that it doesn't happen again in the future.

    Good luck!

    Nae
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